Evidence Law in the Ugandan Jurisdiction

Under s. 4 of the Uganda Evidence Act, evidence may be given in any suit or proceeding of the existence or non-existence of every fact in issue and of such other facts as are declared to be relevant. C.D. Field has defined burden of proof as a metaphorical phrase indicating an obligation to prove a fact or facts. This obligation necessarily involves the adduction of evidence in an attempt to prove a fact, subject to occasional cases where a fact can be established without evidence.

Towards the end of the Nineteenth Century, Thayer maintained that the “words burden of proof” were used in two senses and that there was only one phrase for two ideas. One idea was the duty of him who will lose the case if he does not make out a proposition, and the other was the duty of going forward in argument or in producing evidence. Wigmore on the other hand while elaborating Thayer’s thesis treated the two meanings of burden of proof as involving two separate burdens. One burden was that of convincing the jury at the end of the trial and the other was that of making out a prima facie case.

It is provided in section 101(1) of the Uganda Evidence Act that whoever desires a court to give judgment as to any legal right or liability dependent on the existence of facts which he or she asserts must prove that those facts exist. Subsection (2) provides that when a person is bound to prove the existence of any fact, it is said that the burden of proof lies on that person. This can be illustrated as below: (a)A desires a court to give judgment that B shall be punished for a crime which A says that B committed. A must prove that B committed the crime. (b)A desires court to give judgment that he is entitled to a certain landing the possession of B, by reason of facts which he asserts and which B denies to be true. A must prove the existence of those facts.

The obligation to adduce evidence is not backed by any direct sanction for the penalty for failure to fulfil the duty or to discharge the burden, is the risk of failure in the whole or a part of the litigation. According to s. 102 of the Uganda Evidence Act, it is provided that the burden of proof in a suit or proceeding lies on the person who would fail if no evidence at all were given on either side.

DOCUMENTARY EVIDENCE

The Study of documentary evidence involves the principles or rules which govern admission of documents in evidence. These are provided for from sections 60 to 100 of the Evidence Act Cap.6 and are divided into five sections. i)Classification of documents

ii)Proof of execution of a document or genuineness of a document. iii)The rules of proving the contents of a document
iv)Presumptions relating to documents.
v)Admissibility of extrinsic evidence to prove contents of a document or the parole evidence rule and its exceptions.

What is a document?
S.2 (1) (b) of the Evidence Act defines a document to mean any matter expressed or described upon any substance by means of letters, figures or marks or by more than one of those means, intended to be used or which may be used for the purpose of recording that matter.

Documentary evidence is any evidence introduced at a trial in the form of documents. Although this term is most widely understood to mean writings on paper (such as an invoice, a contract or a will), the term actually includes any media by which information can be preserved. Photographs, tape recordings, films, and printed emails are all forms of documentary evidence.

Documentary evidence is defined under the Uganda Evidence Act to mean documents produced for the inspection of the court.

Under s.3(1) of the Tanzania Evidence Act a document is defined as any writing, Photostat and every recording upon a tangible thing, any form of communication or representation by one of those means which may be used for the purpose of recording any matter provided that such recording is reasonably permanent and readable by sight.

Suffice it to say that under the Law of Evidence, a document means more than its ordinary English meaning and has been held to include sign posts, tombstones, photos, e.t.c. It also includes tape recording which may not fall under any of the definitions. The admissibility of tape recording was first considered in R v Maqsud Ali. A murder had been communicated and the two appellants voluntarily entered a room with a Police Superintendent and a Pakistani Liaison Officer. A microphone was installed in the room and connected to a Tape Recorder in another room. The recorder was switched on and the Superitendant and the Liaison Officer left. While the appellants were alone, they conversed in a Punjabi dialect and their conversation almost amounted to a full confession to the murder.

The tape was kept in Police Custody but not all the appellants said it was clear as the recording contained several street voices. It was also not easy to prepare the transcripts and translations of the words on the tape because the words had to first be translated into Urdu which is the Official language of Pakistan. At the trial, one of the issues was whether the tape recording and the transcript translations should have been admitted in evidence. Court held that evidence of a tape recording was in the circumstances admissible the trial judge having properly warned the jury of the caution with which they should consider the translations. That the translations were properly admitted despite the difficulties of language and that the recorder was in substance a mechanical eavesdropper and the judge had rightly exercised his discretion by not excluding the evidence of the tape and the translations. The case laid down the following principles of law namely:

i)Tape recording is admissible in evidence provided the accuracy of the recording can be proved and the voices recorded can be properly identified and that the evidence is relevant and otherwise admissible. That such evidence should always be regarded with some caution and should be assessed in light of all the circumstances of the case. ii)Court also said that there can be no question of laying down any exhaustive set of rules by which the admissibility of such evidence should be judged. Marshall J said that:

“…we must not be taken as saying that such recordings are admissible whatever the circumstances but it does appear to this court wrong to deny the law of evidence advantages to be gained by new techniques and devices provided the accuracy of the recording can be proved and the voices recorded properly identified, provided also that the evidence is relevant and otherwise admissible we are satisfied that tape recording is admissible in evidence.”

This was followed in Salau Dean v Republic. The appellant was convicted of corruption and giving false information by a person employed in the public service. The Police were informed by the appellant that a certain Immigration Officer had asked him for ₤50 to refrain from prosecuting a friend of his under the Immigration Act and a Police Trap was laid. When the appellant met the Immigration Officer, he had a long conversation with him which was tape recorded by various devices but when the trap was closed, the appellant and the immigration Officer were facing each other and the latter was in possession of money given to the former by the Police. This conversation was recorded in Punjabi and translated to English.

The Immigration Officer consistently asserted that the money had been thrust into his pocket by the appellant after prolonged and unsuccessful efforts to persuade him to accept it as a bribe. After hearing and before Judgment, the magistrate had the tape played over in his chambers’ privacy but in the absence of the appellant or his counsel. The Magistrate was interested in two words which could mean either “keep it” or “take it”. The magistrate held that the words could only mean “take it”. The first issue was whether the tapes were properly admitted by the court and it was held that the tape recordings were properly admitted on the authority of R v Maqsud Ali where admissibility of tape recordings in court first arose as an issue. Secondly, on whether the subsequent playing of the tapes were properly done, the court held that the opinion of the interpreter on a subsequent playing of the tape recording was adverse to the case of the appellant and his advocate and in accepting it the magistrate committed a fundamental error depriving the appellant not only of semblance but of the absence of a fair trial.

Uganda v Evaristo Nyanzi held tape recordings to be admissible as documents.

CLASSIFICATION OF DOCUMENTS
The classification is important because it determines the method by which the particular document might be proved. There are three main types of classification: 1. Attested Documents as opposed to Unattested Documents:

To attest a document means to witness the signing or execution of the document. Certain documents are required in Law to be attested e.g. Powers of Attorney, Wills, Transfer Deeds under the Registration of Titles Act. Only documents that require attestation should be presented as attested. Unattested documents are those which are not by law to be witnessed in order to be valid.

2. Private as opposed to Public Documents
A Public Document is one issued officially by a government or one evidencing the act of a government. S.72 of the Uganda Evidence Act provides a list of what constitutes public documents under the law of Evidence namely: a) Documents forming acts or records of acts of the following: 1. of sovereign authority.

2. of Official bodies and tribunals
3. of Public officers, legislative, judicial and executive whether of Uganda or of any other part of the commonwealth or the Republic of Ireland or of any foreign Country. b) Public records kept in Uganda of private documents

A private document becomes a public document by registration in a public office. In Kafeero v Turyagyenda , it was held that omission to register does not affect Validity of a document.

The Registration of Documents Act Cap. 81 provides for the registration of individual groups. Registration of a document eases proof of such document since it will be presumed and it is also for safe custody. This provision however for registration of private documents is not mandatory. This was discussed in the case of Kafeero v Turyagyenda. One of the parties wished to rely on a partnership deed which at first was not registered but was registered after a long lapse of time from when the partnership was said to have began. One issue was whether the Partnership deed could be allowed in evidence considering the time of registration. Court held that the registration or non registration of a document has no bearing on its validity or invalidity. That S.14 of the Registration of Documents Act does not provide any time within which a document must be registered nor does it put any compulsion on any body to register a document. Court also said that registration can be done at any time at the option of the parties.

In Khalid Walisimbi v Jamil Kaaya, it was held that letters of administration is a public document and presumed genuine under s.77 of the Evidence Act.

S.74 deals with private documents. It provides that all documents other than those specified in s.73 are private documents. Tootal Bodhurst Co. v Ahmed considered the issue of private documents against public ones. It was held that a certificate of registration of trademarks issued by an English registry was a public document.

The significance of various types of classification centres around the rules governing the admissibility of certain documents in evidence. For instance, with a public document, one may tender a certified copy thereof and a court will act upon it whereas with a private document, the court may insist on the best Evidence Rule and that will mean production of the original itself.

3. Primary and Secondary Documents/ Evidence
These are covered under ss.60-65 of the Evidence Act. S.60 provides that the contents of documents may be proved by either primary or secondary evidence. Under s.61, Primary Evidence is defined to mean the document itself produced for inspection of a court. In other words, primary evidence is the original document itself. The section gives a number of explanations on how to distinguish primary from secondary evidence.

1.Where the document is executed in several parts, each part is primary evidence of the document. Where the document is executed by any one or some parties only, each counterpart is primary evidence as against the parties executing it. 2.Where a number of documents are all made by one uniform process, e.g in the case of printing, lithography or photography, each is primary evidence of the contents of the rest; but where they are all copies of a common original, they are not primary evidence of the contents of the original. This was considered in DPP V Nathan.

Nathan had been accused and convicted of fraud. He was a proprietor of a travel agency with two branches one in Zanzibar and the other in Dar-es-salaam. The former was duly approved by the International Air Transport Association, appeared on the official Agency List of the IATA and it was duly authorized to issue International Air Tickets whereas the latter was not so approved nor listed and was therefore not competent to issue tickets. The respondent had been licensed to sell tickets for the East African Airways in Zanzibar but he was alleged to have forged a ticket in Tanzania where he had no licence to sell with intent to deceive.

The evidence adduced against him consisted of an IATA official agency list which listed all agents selling air tickets in Africa. It was adduced to prove that the respondent had no authority to sell tickets in Tanzania and that therefore he did so fraudulently. He challenged the production of this list as secondary evidence and not primary evidence and that therefore it should not have been admitted in court. Court held that the loose-leaf cyclostyled volume was apparently produced by a process capable of making many other documents uniform with the leaves of the volume produced in evidence. Consequently it was admissible as an original under s.62 of the Indian Evidence Act. {=s.60 UEA}.

Secondary Evidence is defined by s.62 of the Evidence Act which provides that Secondary Evidence means and includes: a)certified copies i.e. copies of the original which have been certified by a competent authority. b)Copies made from the original by mechanical processes which in themselves ensure the accuracy of the copy and copies compared with such copies. c)Copies made from or compared with the original.

d)Counterparts of documents against parties who did not sign them e)Oral accounts of contents of a document given by a person who has seen the
document.

PROOF OF EXECUTION OF DOCUMENTS
The general rule is that documents must be proved by primary evidence. This is stated in section 63 of the Evidence Act but the section makes allowance for exceptions as shown in the Evidence Act. The aspect of proof of execution of a document is important because before a document is admitted is admitted in evidence it must be proved to the court to be genuine i.e. it must be shown that it was duly executed by the person or persons who appear on the face of the document as signatories.

The principle was laid down in very eloquent terms in Stamper v Griffen (1856) 20 Ed. 320 The court said hat no writing can be received in evidence as a genuine writing until it has been proved to be a genuine writing and none as a forgery until it has been proved to be a forgery. That a writing of itself is not evidence of one thing or the other and therefore is not, unless accompanied by proof of some sort, admissible as evidence.

How can Genuineness of a document be proved to court?
Each category of documents is proved in its own way.
A.Public Documents
This can be proved in a number of ways:
A. Public document
This can be proved in a number of ways.
Under s.77 categories of Public Documents and how they can be proved is provided. Under s. 78, a public document can be proved by producing a certified copy thereof. The section sets a presumption that every certified copy of a public shall be presumed to be genuine. Uganda v Mukasa Deogratius

Under s.76, certified copies may be produced in proof of the contents of public documents of which they purport to be copies. Under s. 75, every person has a right to inspect any public document and get certified copies thereof if they so desire and every public Officer under whose custody a public document may be has a duty upon request to give copies and to certify them but the duty to certify and the right to get copies is dependent on the legal fees that may be charged and is not absolute. B. Private documents Required by Law to be Attested

According to s.57, if a document is required by law to be attested, it shall not be used as evidence until one attesting witness at least has been called for the purposes of proving its execution if there is an attesting witness who is alive and is subject to court process and who is capable of giving evidence. There are however exceptions:

1. Under s. 68 in case no attesting witness can be found, it must be proved that the attestation of at least one witness is in his handwriting and that the signature of the person executing the document is in the handwriting of that person. Proof of handwriting can be done by calling a handwriting expert. See: Gatheru v R

Under s. 45, a person who is acquainted with the handwriting of a person who is alleged to have executed a document can give evidence thereof.

In Gatheru’s case, the court said that an expert need not have acquired his skill academically but it also includes skill acquired through practical experience. With regard to admission of handwriting, cases include:

Salum v Republic
The appellant was charged with forgery, uttering a false document, a forged document and stealing. It was alleged that he had forged a postal receipt, uttered it to a post office clerk thereby obtaining a letter and stealing its contents. The only evidence against the appellant was that of opportunity to commit the offences and evidence of a handwriting expert who stated that he had compared the signature on the postal receipt with a letter written by the appellant and specimens of the handwriting of the appellant and two other messengers in the same employment as the appellant and he had come to the conclusion that the signature on the receipt and letter were written by the same person who was the appellant. On appeal from his conviction it was held that care should always be taken not to give an expert’s evidence too much weight. That it is not possible to definitely say that any body wrote a particular thing. That all one can do is to point out the similarities and draw conclusions there from. This is the manner in which expert evidence in matters of this kind ought to be presented to court. That then the court has top make up its mind with such assistance as can be furnished to it by those who have made a study of such matters where particular writing is to be assigned to a particular person.

Court also said that a handwriting expert is not a person who tells you that this is the handwriting of such and such a person but he is a person who, harbitrated to the examination of handwriting, practiced the task of making minute examination of handwriting, directs the attention of others to things which he suggests are similarities and that are no more than its legitimate province.

Walusimbi v Standard Bank
The plaintiff maintained a current account with the defendant. He had been issued with a chequebook consisting of 25 leaves. He issued 10 of them and they were honoured by the defendant. The plaintiff’s account was duly debited. Another chequebook, also consisting of 25 leaves, was issued by the defendant. 14 leaves were issued as cheques and they were honoured by the defendant by debiting the plaintiff’s account. The plaintiff received two statements of accounts on which he discovered a number of debit entries supported by the 14 cheques purporting to have been signed by him.

He stated that he was given a chequebook which he was still using, displayed it in court and stated that he never requisitioned for another chequebook. He brought this suit to recover this money and general damages for loss of account and interest against the defendant. On the issue of genuineness of the cheques, court held that the procedure to be followed in submitting a questioned document for the examination of an expert is that if the questioned writing cannot be distinguished by other considerations other than in the writing itself, it is always advisable it with the genuine writings without any information as to which document, paper or writing is suspected and in whatever way the question is presented until an opinion has been rendered by the expert.

2.S.69 provides that an admission of a party to an attested document that he has executed it is sufficient proof of his execution against him even if the document is required by law to be attested.

Pope V Rep
It was held that since the evidence that the document alleged to be in the appellant’s handwriting had not been challenged and the appellant had also tacitly admitted the fact, there had been no failure adequately to direct the jury thereon. The appellant had been charged with fraudulent false accounting by paying staff pay sheets to fictitious persons and the signature thereon was his which he admitted.

3.By way of estoppel, if a party to proceedings has by prior conduct relied upon or represented that a document is genuine, then there may be no need to call an attesting witness because the doctrine of estoppel stops him from denying its genuineness.

4. S.90 – THE 30 YEAR OLD RULE- The section creates a presumption that documents which are thirty years or more and which have been kept in proper custody shall be presumed to be genuine and that in case of an attested document it shall be presumed that the document was duly executed and attested by the persons appearing to be executors and attesters. A document will be said to be in proper custody if it is in a place in which and under the care of a person of whom they would naturally be. The section goes on to say that no custody will be considered improper if it is proved to have had a legitimate origin or if the circumstances of a particular case are such as to render such an origin probable.

5. S. 70 provides that if an attesting witness denies or does not recollect the execution of the document then other evidence may be called to prove its execution. This is regarded as a last resort option.

C. Unattested Documents
With regard to unattested documents, these can be proved under s. 65 which provides that a document alleged to be signed or to have been written by any person under whose signature or in whose handwriting it is alleged to be must be proved to be in his or her handwriting.

Under s.71, an attested document which is not required by law to be attested may be proved as if it was an attested. S.72 (1) provides court with powers or authority to compel any person to write words or figures for purposes of ascertaining handwriting, signature or seal.

Under s. 72(3), the same provision requiring a person to give specimen handwriting and signature applies equally as well to cases of finger impressions.

General Rules with Regard to Proof
The general rule is that documents must be proved by primary evidence. That in practice means that a person who wishes to rely on a document as evidence in his case must produce an exhibit of the original to court (s.63).

S.63 provides that documents must be proved by primary evidence except in those cases provided under the Evidence Act.

Several authors have argued that the rationale behind the rule that documents must be proved by primary evidence is based on the BEST EVIDENCE RULE. According to Phipson on Evidence, the rule states that the best evidence must be given which the nature of the case permits. The statement was restated in the case of Onyelumbi v Barker. Lord Hadding said that: “the judges and sages of the law have laid it down that there is a general rule of evidence – the best that the nature of the case will allow.”

In Brewster v Sewall, the court restated that the best evidence rule with regard to documents. It was said that the reason why the law requires the original document to be produced is that other evidence is not satisfactory where the original document is in possession of a party and where it is in his power to produce it. If he does not produce it or take the necessary steps to obtain its production but resorts to other evidence, the fair presumption is that the original document will not answer his purpose and that it will differ from his secondary evidence which he adduces.

The rule has been made out in such general terms that that whatever is made out is the best evidence. This is in practice based on some social considerations such as the following: (a)Public convenience which requires certified copies to be allowed in place of the originals when dealing with public documents. (b)Speed and economy in the administration of justice.

(c)Public policy such as when some documents are state secrets and therefore privileged. Bu that notwithstanding, the rule is still very useful and relied upon by courts. Wigmore argues that documentary evidence is the best for two reasons: (i)As between the original and a copy, the latter is bound to have inadvertent or wilful errors on the part of the copyist. (ii)As between the original and the copy, there are additional risks of error in recollection due to difficulties in memorising the literal tenor of the document. In Vincent v Paul, the judge stated that:

“I have always acted most strictly upon the rule that what is in writing shall be proved only by the writing itself. My experience has taught me the extreme danger of relying on recollections of witnesses as to the contents of written instruments. They may be so easily mistaken that I think the purpose of justice requires the strict enforcement of the rule.”

Historical origins of the rule
It has been argued that the law of documentary evidence originates from the primitive way of trial by documents. Under this situation if a person produced a document it was viewed as sacrosanct and that person won the case. If a person produced a copy then he would lose the case since only an original could stand up in court. This became very unfair and a number of exceptions were developed the first of which provided for; (a)An equitable remedy under which one would seek an “order of discovery”. One would apply to court to compel the adversary to produce certain documents in his or her possession for the examination of the party who did not have them. (b)Where the original document was proved to be lost the court would allow secondary evidence to be adduced. These exceptions still exist under common law and have also been incorporated into Ugandan law.

Exceptions to the rule of Proof by Primary Evidence

Most of the exceptions appear in s.64 of the Evidence Act which contains the instances under which secondary evidence of the contents of documents may be given. Under the section, secondary evidence may be given: (1) When the original is shown or appears to be in the possession of the person against whom the document is sought to be proved or in the hands of any person who is out of reach or not subject to court process or of any person legally bound to produce it before the court but who after being given notice to produce it does not do so. S.64 (a) has three main instances under which the original may be dispensed with: (i)Where the document is in the possession of an adversary who refuses to produce it on notice.

This is where the innocent party wishing to rely on the document can apply for an order of discovery. In Lakhamani Ranji v Jessa & Sons, the appellant sued the respondent for payment for extra work done under a building contract. The respondent’s defence was that the parties had discussed the matter and agreed on a fixed sum as payment for all work done and that later a cheque was sent to the appellant together with a letter stating that the cheque was in full payment of the appellant’s dues. The appellant denied the sending of the letter. The respondent produced a carbon copy of the letter as evidence. It was accepted by the lower court and the appellant appealed one of the grounds being that the carbon copy was not properly admitted. The court held that the carbon copy was properly admitted under S.63 (a) [which is equivalent to s.64 (a)].